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Ardhendu Sekhar Chatterjee and ors. Vs. Kachem Sheikh and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1948Cal75
AppellantArdhendu Sekhar Chatterjee and ors.
RespondentKachem Sheikh and ors.
Cases ReferredJahir Mandal v. Rani Radha Rangini Devi
Excerpt:
- .....conduct and publication of the sale.3. the applications were made by the judgment-debtors, and the auction-purchaser and certain lessees of the auction-purchaser were the opposite parties. the learned munsif held that the processes had been fraudulently suppressed and there had been no proclamation of sale. he accordingly held that the failure of the judgment-debtors to apply within limitation was due to this fraud and as the judgment-debtors came within less than a month of knowledge of the sale the learned munsif held that the applications were within limitation. he accordingly set aside the sale.4. both the auction-purchaser and the lessees appealed to the court of the district judge and there a point was taken that no appeal lay by reason of the provisions of section 153, ben. ten......
Judgment:
ORDER

Harries, C.J.

1. These are two petitions for revision of orders of a lower appellate Court rejecting appeals on the ground that no appeals were maintainable.

2. There had been proceedings before a learned Munsif for setting aside a sale on the ground of fraud and irregularity in the conduct and publication of the sale.

3. The applications were made by the judgment-debtors, and the auction-purchaser and certain lessees of the auction-purchaser were the opposite parties. The learned Munsif held that the processes had been fraudulently suppressed and there had been no proclamation of sale. He accordingly held that the failure of the judgment-debtors to apply within limitation was due to this fraud and as the judgment-debtors came within less than a month of knowledge of the sale the learned Munsif held that the applications were within limitation. He accordingly set aside the sale.

4. Both the auction-purchaser and the lessees appealed to the Court of the District Judge and there a point was taken that no appeal lay by reason of the provisions of Section 153, Ben. Ten. Act. It was at first not admitted that the judicial officers concerned in these cases were persons specially empowered by the High Court to exercise final jurisdiction under Section 153. The lower appellate Court having consulted the records found that all the officers concerned were specially empowered to exercise final jurisdiction. The lower appellate Court accordingly held that the decision of the learned Munsif was final as the amount claimed in the suit did not exceed Rs. 50. An application was made to the lower appellate Court to treat the matter in revision but the Court refused to do so. The presiding officer was the Additional District Judge to whom the cases had been transferred by the District Judge. In his view, once he had held that the appeal was not maintainable he could not convert the proceedings into a revision.

5. Two petitions for a revision of the orders of the lower appellate Court were filed in this Court, and Mr. Ghosh has contended that the orders of the learned Munsif in these cases cannot be final by reason of the fact that the orders in these cases decided a question relating to title to land, or to some interest in land as between parties having conflicting claims thereto. If the orders did decide such a question or questions then the orders would be appealable.

6. To Section 153 there is appended an explanation which is in these terms:

A question as to the regularity of the proceedings in publishing or conducting a sale in execution of a decree for arrears of rent is not a question relating to title to land or to some interest in land as between parties having conflicting claims thereto.

7. It appears to me on the plain terms of this explanation that it is unarguable that in the case before the Munsif there was any decision on a question relating to title to land or to some interest in land as between parties having conflicting claims there to.

8. Mr. Ghosh who has appeared on behalf of the petitioners has admitted that if the dispute was between the judgment-debtors and the auction purchaser the explanation could be conclusive. But he says there was also a dispute between the judgment-debtors and the lessees from the auction-purchaser; but that dispute was all part of the same dispute. The lessees derived title from the auction-purchaser and if the auction-purchaser failed the lessees failed. They had no independent right, and they could only succeed if it was shown that there was no fraud or irregularity in the conduct of the sale.

9. Mr. Ghosh argued that if there was some fraud present independent of the fraud in the conduct of the sale, then the explanation could not possibly apply. Mr. Ghosh suggested that there was independent fraud and that was found to be sufficient to bring into play the operation of Section 18, Limitation Act. The fraud which brought into play Section 18, Limitation Act, was merely the fraud alleged in the conduct and proclamation of the sale. What was alleged was that the processes were suppressed, the sale was never proclaimed and for that reason the unfortunate judgment debtors knew nothing of the sale for years after it had taken place. The grounds for an application under Section 18 are the very same grounds as those put forward to set aside the sale.

10. I do not think it necessary to discuss the matter any further because the case is completely covered by a Bench decision of this Court in Jahir Mandal v. Rani Radha Rangini Devi : AIR1928Cal859 . There the facts are very similar and it was held that no appeal lay. Mr. Ghosh attempted to argue that another Bench decision of this Court in Juga Chandra v. Ramesh Chandra : AIR1930Cal490 was in his favour. But it is to be observed that the Bench in this latter case expressly approved of the decision in Jahir Mandal v. Rani Radha Rangini Devi : AIR1928Cal859 . to which I have already made reference. It appears to me on these authorities that there was no decision in this case on the question as to title to land or to some interest in land as between parties having conflicting claims thereto. That being so, there was no appeal and the learned Additional District Judge was, therefore, right in his decision.

11. As the matter is before me in revision it would be open to me to revise the decision of the learned Munsif in a proper case, I have been taken through the judgment of the learned Munsif and it appears to me that it would be quite impossible to interfere with his findings in revision. He came to his findings that the processes had been suppressed, that there had been no proclamation of sale, upon abundant evidence, and that being so, those findings cannot be challenged in revision.

12. In the result, therefore, both these petitions fail and are dismissed. Each Rule is, therefore, discharged accordingly. As no one appears for the opposite parties in Rule No. 704 except the minor and as the costs of the minor who is represented by the Deputy Registrar, have already been paid, I make no order for costs in Rule No. 704; The opposite parties in Rule No. 703 are, however, entitled to their costs.


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